In the spring of 1786, a series of newspaper essays appeared in Boston arguing that lawyers and the laws on which they relied posed a mortal threat to the republican way of life and therefore had to be eradicated forever. Authored by Benjamin Austin, Jr. under the pseudonym "Honestus," these writings sparked a substantial public dialogue extending far beyond Massachusetts’s borders and, within the Bay State, prompted the Shaysites to wage what one historian has called "the American Revolution’s final battle." The commonly held notion that the obstreperous spirit of 1786 reflected a "crisis" requiring redress, and that ratification of the Constitution thereafter resolved it, temps us to consign Critical Period radicals such as Benjamin Austin to the losing side of history. The Article pursues a contrary interpretation. It views Austin and his partisans in 1786 as seminal figures in the birth of an independent American legal culture. It traces overlooked strains of this post-Revolutionary legal culture from the Founding to the Civil War and, in the process, unsettles foundational assumptions long held dear by American legal historians.

And that raises what is, finally, the problem with the natural-law jurisprudence Upham thoughtfully defended in an earlier post. It inevitably empowers judges with a wide berth of discretion they are neither professionally trained nor institutionally disposed to handle responsibly or efficaciously. Among the general electorate, this escape to judges to resolve disputes neatly, cleanly, expeditiously and without public effort is ultimately a flight from political judgment, a seeking of protectors akin to—distantly, but still sharing political DNA with—the fetishization of the presidency in contemporary politics.

There has been, moreover, a suspicious tendency—there is no evidence, I would hastily add, with which to accuse Upham, nor do I—among advocates of natural-law jurisprudence for the conclusions they draw from it to align with conspicuous regularity with their policy proclivities. Yet before being seduced by natural-law jurisprudence, conservatives should not presume it will lead to conclusions they would endorse. (Equip a bevy of welfare-rights lawyers from the 1970s with a volume of Aquinas on natural law and charity and see what happens.) Those who sharpen this sword ought not to be surprised when it turns on them. If it is within the Supreme Court’s power to ban same-sex marriage, only the slenderest of reeds would support a complaint should judges require it instead.

The D.C. Circuit opinion invalidating President Obama's 2012 recess appointments of three NLRB commissioners reaches issues it did not have to reach, and resolves them through a textual analysis that is both unpersuasive on its own terms and oblivious to the force of institutional custom and history in interpreting the Constitution. If upheld, the opinion could have terrible consequences for public administration and promote a further breakdown in norms of interbranch comity on which the separation of powers depends.

A new opinion by the Third Circuit that followed the D.C. Circuit in invalidating President Obama’s use of the recess-appointments power may actually strengthen the president’s case. The decision may focus the Supreme Court’s attention on how much legal uncertainty the Court could create by holding intrasession recess appointments invalid. Beyond that, the new decision devastates the D.C. Circuit’s textualist reading of the Recess Appointments Clause. The Third Circuit’s more policy-oriented analysis, if pursued with a more accurate view of the Framers' purposes, actually points toward upholding intrasession recess appointments under current institutional conditions.

In addition to his judicial duties, the Chief Justice presides over a sprawling judicial bureaucracy. Each year, the Chief fills positions within that bureaucracy, designating Article III judges to various specialty courts and appointing such officers as the director of the Administrative Office of the U.S. Courts. Although critics worry that the Chief may use his appointment role to shape Third Branch policy unduly, scholars view the role as constitutionally benign.

This Article questions the Chief’s role. The Constitution authorizes Congress to vest the appointment of inferior officers in the “courts of law” but not the Chief Justice. History teaches that this was a deliberate choice (to curtail the corrupting influence of patronage powers) and one to which the nation’s first Chief, John Jay, scrupulously adhered. After tracing the decline of the early practice, the Article proposes the return to a courtbased appointment model.

06/27/2013

In Fisher, the Supreme Court majority clarified Grutter v. Bollinger’s holding that higher education admission plans that promote diversity by taking race into account are subject to strict scrutiny. As he did in Gutter and Parents Involved in Community Schools v. Seattle School District No. 1, Justice Thomas wrote a significant separate opinion setting forth his views on the issue.

Thomas’s concurrence in Fisher made the following points:

1. Traditional strict scrutiny for race discrimination requires a compelling state interest, which is either national security or remedying past discrimination. The educational benefits from diversity are not a compelling state interest.

2. Brown and its progeny rejected the idea that a school’s survival would be a compelling state interest. It had been claimed that desegregation would lead to public schools being closed down, but that was not thought adequate to justify segregation.

3. The desegregation cases rejected arguments virtually identical to those advanced by Texas: that differential standards prepares Texas’s students to become leaders in a diverse society, improves interracial relations, and is a temporary necessity because of the enduring race consciousness of society.

4. While Texas probably believes it is helping minorities, racial discrimination is never benign. The worst forms of discrimination, such as slavery or segregation, were justified as beneficial. Here blacks and hispanics are harmed as they are far less prepared for admission, would have access to college in any event, and are stamped with a badge of inferiority.

What is interesting to me is the methodology of Justice Thomas’s opinion. As the above summary shows, his opinion relies on one view of the prior cases, on his claim that affirmative action is similar to traditional discrimination against blacks, and on a vision of the colorblind constitution.

In this respect, Justice Thomas’s opinion methodologically resembles a Justice Brennan opinion. It employs various tools of legal analysis to powerfully defend a position. His arguments will strongly appeal to those who agree with his vision, while they will be rejected by those who disagree with that vision. As I have mentioned in the past, what is surprising about Justice Thomas’s opinion is that he does not mention anything about the original meaning of the 14th Amendment. This great originalist somehow leaves these concerns to the side when discussing affirmative action.

My recent paper argues that Justice Thomas need not abandon originalism in this area. There are plenty of strong arguments that he could rely upon to justify at least significant portions of his view. Perhaps my paper was not released in time for the Justice to rely on it; perhaps his chambers did not see it; or perhaps he did not regard it as persuasive.

Still, if one is going to be an originalist – and as strong an originalist as Justice Thomas is – then one should not be ignoring originalist arguments in such an important area as this one.

I don’t mean to be too hard on Justice Thomas. It is common practice for justices to rely on different types of methodological arguments. Justice Brennan certainly had his Atascadero, which was a powerful originalist argument against sovereign immunity. But Justice Thomas's inconsistency here is unnecessary. He could have made an originalist argument.

In the May issue of the University of Minnesota Law Review, Timothy M. Tymkovich (U.S. Court of Appeals for the Tenth Circuit) has this article: Are State Constitutions Constitutional? (97 Minn. L. Rev. 1804 (2013)). Here is the abstract:

This Article will examine the history, text, and application of the Guarantee Clause (or Republican Form of Government Clause). It will first examine the historical context in which the Framers enacted Article IV, Section 4. It will then discuss the text and public understanding of the Clause. Then, it will survey the case law at the federal and state level that examines direct democracy—the initiative and referendum—in light of these principles. It will conclude with a summary of modern objections to direct democracy and new challenges to initiatives that intrude on legislative power in the area of civil rights and public finance.

06/26/2013

At SCOTUSblog, Ilya Shapiro (Cato Institute) has a thoughtful discussion of Shelby County v. Holder which explains it in terms of founding principles, or, as he says , the "constitutional order." As he summarizes the opinion's opening paragraph:

Section 5 of the Act required States to obtain federal permission before enacting any law related to voting—a drastic departure from basic principles of federalism.

And §4 of the Act applied that requirement only to some States—an equally dramatic departure from the principle that all States enjoy equal sovereignty.

While these were justified as emergency measures in 1965, the Court says, they are no longer justified (because the affected states are no longer outliers), and thus (in Shapiro's phrase) the constitutional order must be restored.

At Balkinization, though, Mark Graber asks, what happened to the Reconstruction Amendments:

From 1861 to 1865, the United States fought a civil war. The outcome of the war were three constitutional amendments, military rule in the south, and numerous federal laws minutely regulating political procedures in the former confederate states. The constitutional significance of the Civil War and Reconstruction remains a source of political and scholarly debate, but no one denies that something of great constitutional importance happened during the 1860s. Until today.

One of the most remarkable features of Chief Justice Roberts' opinion for the Court in Shelby County v. Holder is the almost complete absence of any reference to the Thirteenth, Fourteenth, and Fifteenth Amendments, the Civil War, or anything that happened during Reconstruction. The only provisions the Chief Justice deemed relevant were the Necessary and Proper Clause of Article I and the Tenth Amendment.

In 1865, the Thirteenth Amendment banned slavery in the United States. There is an overwhelming consensus that the Thirteenth Amendment represents an exception to the state action doctrine – the general rule that the U.S. Constitution does not apply to private actors. There has never been an analysis of this assertion using reasonable observer originalism. As a result, the consensus view on the Thirteenth Amendment threatens to undermine a key feature of the Constitution – that it provides rules of conduct solely for governmental actors.

This Article uses reasonable observer originalism to examine the text and context of the Thirteenth Amendment. This is the first analysis that finds that Section One of the Thirteenth Amendment is not the aberration that most have claimed; it is consistent with the state action doctrine and only applies to governmental actors. However, Section Two allows Congress to act on private individuals when a state has refused to enforce its generally applicable laws protecting bodily integrity and freedom from restraint. Both aspects of this analysis demonstrate how the case law that has arisen from the Thirteenth Amendment is in harmony with the revised view set forth in this Article, and that the constitutional ban of slavery is properly understood as an anti-caste provision prohibiting discriminatory governmental exemptions from laws protecting persons from physical force.

Part I of this Article describes the consensus view that the Thirteenth Amendment is an exception to the generally accepted maxim that the U.S. Constitution applies solely to governmental actors. Examining constitutional context and using the techniques of intra-textualism, Part II explains the flaws in the reasoning advanced in support of the consensus view. Part III describes how the original meaning of the term “slavery” denoted a legal institution created and maintained by state action. Similarly, Part IV describes how the original meaning of “involuntary servitude” is consistent with a state-centered view of the institution. Part V analyzes how the relationship between the Civil Rights Act of 1866 and the Fourteenth Amendment reinforces the plausibility of the state-action interpretation of the Thirteenth Amendment. Part VI then describes how Section Two of the Thirteenth Amendment permits Congress to reach private conduct, even though Section One only directly reaches state conduct, and how this interpretation makes sense of the existing case law regarding the scope of the Thirteenth Amendment.

06/25/2013

Yesterday's Fisher v. University of Texas was a disappointment to those, like me, who hoped to see clash among the justices over the original history of the Fourteenth Amendment. Justice Thomas added a concurrence reaffirming his view that the Constitution requires colorblind admissions policies, but without engaging directly with critics who have pointed to congressional action in favor of the freedmen and other black people around the time of the Fourteenth Amendment (summarized, of course, here) as proof of Thomas's hypocrisy. Thomas did, however, at one point cite Clark v. Board of Directors, 24 Iowa 266 (1868), noting that it was "decades before Plessy" but without noting that the Fourteenth Amendment was also certified as ratified by Secretary of State Seward in July 1868. Jack Balkin, one of those who have made such a charge against Thomas, responds with a dismissive discussion:

Justices Scalia and Thomas once again argue for a strict colorblindness rule, but, once again, neither attempts to square their views with the original meaning of the Constitution. The closest Justice Thomas comes is citing to Clark v. Board of Directors, an Iowa Supreme Court decision from June [CG: actually April] 1868. The problem is that Clark construes the Iowa state constitution (not the federal Constitution), and it appears to have been decided before the Fourteenth Amendment was officially ratified in July 1868.

I have a special interest in Clark, having discussed it as a possible guide to the interpretation of the Privileges or Immunities Clause here and here. A few thoughts after the jump.